Point of Law: Burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove fact of Benami or establish circumstances, unerringly and reasonably raising an inference of that fact - Essence of a benami is intention of party or parties concerned and not un-often such intention is shrouded in a thick veil which cannot be easily pierced through.

JUDGMENT :

K. BABU, J.

1. This appeal arises from the order dated 10.09.2015 passed by the Family Court, Thodupuzha in O.P. No. 320 of 2014. The petitioner who lost his case in the Court below is the appellant.

2. The appellant/petitioner instituted the original petition for a declaration that he has exclusive right over ‘A’ schedule property and for other ancillary reliefs.

3. The facts giving rise to this appeal are as follows:

3.1 The petitioner is the husband of the respondent. Their marriage was solemnized on 12.02.1990 as per Christian Religious Rites and Customs. Before the marriage, the petitioner had entered into an agreement for sale in respect of ‘A’ schedule property having an extent of 89 Ares comprised in Sy. No. 185/1 of Wagamon Village with one K.C. Antony. The petitioner paid the entire sale consideration and cleared all liabilities over the property. The possession of the property was handed over to the petitioner on the date of execution of the agreement for sale itself. Even though the agreement was executed in the year 1989, the registration of the sale deed in respect of the property was done only in the year 2003 as per sale-deed No. 3053 of 2003. In view of the delay in the registration of the document the owner of the property had demanded some more amount which the petitioner also paid. When the registration was effected in 2003, the petitioner had already purchased 2 acres and 20 cents of land in his name. To avoid the prohibitions to acquire property over and above the ceiling prescribed in the ‘Thottam Act’ (the petitioner failed to place any material to show that a statute, namely the ‘Thottam Act’ is in existence), the petitioner was constrained to purchase the property in the name of the respondent as a benami transaction. The petitioner himself gave the entire sale consideration for the property. The respondent has no right over the property. The petitioner is still in possession of the properties. He is entitled to a declaration that he is the absolute owner in possession of the petition schedule property.

3.2 The respondent resisted the claim of the petitioner. She pleaded that the entire sale consideration for purchasing the petition schedule property was given by herself and her family members. The retirement benefit of the father of the respondent was also used for purchasing the property. The respondent is in possession and ownership of the property. She had instituted O.S. No. 186 of 2006 before the Munsiff Court, Peerumade in respect of the petition schedule property against some adjacent land owners when there was an attempt of trespass. According to the respondent, the claim of the petitioner that he had paid the entire sale consideration for purchasing the property is false. Petitioner had taken possession of the title deed in respect of the property from her. Litigations that arose from matrimonial disputes are pending between the petitioner and the respondent.

4. The evidence consists of the oral evidence of PWs. 1 to 5 and that of RWs. 1 to 3; Exts.A1 to A8 marked on the side of the petitioner and Exts.B1 to B3 marked on the side of the respondent.

5. After appreciating the rival contentions on the basis of the materials available, the Court below found that the respondent is the absolute owner of the petition schedule property. The original petition was hence dismissed.

6. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

7. The case of the petitioner is that he is the absolute owner in possession of the petition schedule property and that he registered the sale deed in respect of the property in the name of the respondent with intent to limit the extent of property in his possession below the ceiling prescribed in the Thottam Act. According to the petitioner, the entire sale consideration for the property was given by him.

8. The case of the respondent is that the entire sale consideration for the property was paid by herself and her relatives.

9. Sinc